Original WP 5.1 Version (NOTE: This decision was approved by the court for publication.)
This case can also be found at 299 N.J. Super. 49.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOROTHY MATARAS, individually,
DOROTHY MATARAS, natural mother and former
guardian ad litem of the former minor, Eric
JAMES MATARAS, individually and as Executor
of the Estate of Anthony Mataras; LOUIS MATARAS;
S. GEORGE GREENSPAN; STEPHEN F. PELLINO and
the law firm BASILE, BIRCHWALE & PELLINO,
individually and as attorneys for the Estate
of Anthony Mataras, and for James Mataras
individually and as Executor of the Estate of
Anthony Mataras; JOHN J. FANNAN, JOHN J. RYAN, JR.,
JUDITH A. HEIM, JOHN M. AGNELLO, and the law firm
CARELLA, BYRNE, BAIN, GILFILLAN, CECCHI, STEWART &
OLSTEIN, A PROFESSIONAL CORPORATION of New Jersey,
individually and as attorneys for the Estate of
Anthony Mataras, for James Mataras individually and
as Executor of the Estate of Anthony Mataras, for
Dorothy Mataras, and for Eric Mataras by his mother
and guardian ad litem Dorothy Mataras,
SAM ATHANASENAS; MARK MATTIA and the law firm of
NOWELL, AMOROSO & MATTIA, a professional corporation
of New Jersey, individually and as guardian ad litem
of the Infant Eric Mataras,
JOHN J. FANNON, JOHN J. RYAN, JR., JUDITH A. HEIM,
JOHN AGNELLO, and the law firm CARELLA, BYRNE, BAIN,
GILFILLAN, CECCHI, STEWART & OLSTEIN, a professional
corporation of New Jersey,
ROBERT B. GREEN,
DOROTHY MATARAS, individually and as former guardian ad litem of the former minor, Eric Mataras,
Lum, Danzis, Drasco, Positan & Kleinberg, attorneys
for respondents/cross-appellants James Mataras,
individually and as Executor of the Estate of Anthony
Mataras, Louis Mataras, and Dean Mataras (Dennis J. Drasco,
of counsel and on the brief; Kevin J. O'Connor, also on the
Voorhees & Acciavatti, attorneys for respondent S. George
Greenspan (Peter A. Ouda, of counsel and on the brief;
Steven W. Greigel, also on the brief).
Basile, Birchwale & Pellino, attorneys for respondent
Stephen F. Pellino and Basile, Birchwale and Pellino (Anthony
P. Cialone, on the brief).
Tompkins, McGuire & Wachenfeld, attorneys for respondents
John J. Fannan, John J. Ryan, Jr., Judith A. Heim, John M.
Agnello, Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart
& Olstein (Marianne Espinosa Murphy of counsel and on the
brief; Whitney Woods Bemer, also on the brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).
This appeal involves claims contained in plaintiff's Third
Amended Complaint in which she, as widow of Anthony Mataras,
asserts claims against the Mataras defendants (Anthony's sons by
his first marriage) and their attorneys arising from two prior
actions. The first action involved the probate of the Will of
Anthony Mataras, the father of the Mataras defendants, entitled In
the Matter of Probate of the Alleged Will of Anthony Mataras. The
second action involved the wrongful death action arising from the
death of Anthony Mataras in an automobile accident.
In her Third Amended Complaint, plaintiff, through her
attorney, alleged that Anthony Mataras' Will was improperly
probated and that the subsequent wrongful death action instituted
by James Mataras as executor was improperly settled and the
proceeds improperly allocated. Plaintiff alleged that: (i) James,
Louis, and Dean Mataras were negligent, breached their fiduciary
duties, committed theft, and intentionally inflicted emotional
distress on plaintiff; (ii) S. George Greenspan ("Greenspan")
breached his fiduciary duty, was negligent, and intentionally
inflicted emotional distress on plaintiff because he, among other
things, failed to investigate the scene of the accident and
misinformed her as to her share of property she could take; (iii)
Stephen Pellino and Basile, Birchwale & Pellino ("Pellino")
breached their fiduciary duty, were negligent, committed theft and
caused plaintiff emotional distress in its representation regarding
"the probate of James Mataras' estate (sic)"; and (iv) the
attorneys from Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart &
Olstein ("Carella Byrne") breached their fiduciary duty, were
negligent, committed theft and caused plaintiff emotional distress
in their representation in the wrongful death action.
On May 17, 1994, defendant Carella Byrne filed an Answer,
Crossclaim for Contribution, and a Third-Party Complaint for
contribution and indemnification against plaintiff's then counsel,
Robert B. Green ("Green"). Carella Byrne's theory was that Green
had been retained by plaintiff as "independent counsel" and thus
shared in the fiduciary relationship between plaintiff and Carella
Plaintiff filed a Fourth-Party Complaint against Marianne
Espinosa Murphy, counsel for Carella Byrne, and counterclaims
against the Carella Byrne defendants for their filing the Third-Party Complaint for contribution and indemnification against
Green.See footnote 1
On June 11, 1994, defendant Greenspan filed a cross-motion for
summary judgment to dismiss the claims filed against him by
plaintiff. Greenspan contended that: (i) he owed no duty to
plaintiff because he was never retained to represent plaintiff with
respect to either the wrongful death action or plaintiff's
potential entitlements under Anthony Mataras' will; (ii)
plaintiff's claims pertaining to her entitlement under her
husband's will must fail as a matter of law; and (iii) plaintiff's
complaints of theft and intentional infliction of emotional
distress were without legal and factual basis.
On June 16, 1994, defendants Pellino filed an answer to the
Third Amended Complaint and asserted affirmative defenses, cross-claims and a jury demand.
On June 24, 1994, the Mataras defendants filed a motion for
summary judgment to dismiss the claims made by plaintiff against
them. The Mataras defendants contended that: (i) James Mataras
properly administered the estate of the decedent; (ii) plaintiff
received the full amount of all probate and estate monies properly
due and owing to her; (iii) plaintiff knowingly and with
representation of counsel accepted the settlement in the wrongful
death action; and (iv) the court properly allocated said settlement
proceeds in that wrongful death action.
Also on June 24, 1994, defendant Carella Byrne filed a motion
seeking, among other relief: (i) to disqualify plaintiff's counsel
(Green); (ii) to dismiss the Fourth-Party Complaint against
Marianne Espinosa Murphy; (iii) to dismiss Counts II and IV of
plaintiff's Amended Complaint for failure to state a claim; and
(iv) to enter summary judgment dismissing plaintiff's Third Amended
Complaint. On July 29, 1994, the trial court heard oral argument
on the motion, and on August 5, 1994, the trial court entered an
order disqualifying Green as attorney for plaintiff. We denied
plaintiff's motion for leave to appeal that Order. Leave to appeal
to the Supreme Court was denied by Order of October 19, 1994, as
was plaintiff's application for reconsideration of that Order.
Since that time, plaintiff has proceeded prose.
On March 30, 1995, the first trial court judge declined to
recuse himself, as plaintiff had requested, and entered his opinion
on the record granting the Mataras defendants' motion for summary
judgment finding that plaintiff's claims were without merit and
legally deficient. The trial court also granted the summary
judgment motions filed by Carella Byrne and George Greenspan. The
judge did not dismiss plaintiff's complaint as to defendant Pellino
because discovery was incomplete.
Further, although no formal application had been made, the
trial court granted Carella Byrne's oral application for attorney's
fees as a sanction against plaintiff for filing frivolous
pleadings. The trial court found that "[t]he Complaint filed
against all parties was groundless, frivolous and intended to
harass." Additionally, the trial court stated that:
[i]n over eight years on the bench, this court has never
seen greater abuse of the litigation process; greater
misunderstanding of the nature of the process; and a
poorer grounded case than that which has been dismissed
By order dated March 31, 1995, the trial court memorialized the
rulings made on March 30, 1995. Paragraph five of the order
stated: "counsel for all prevailing defendants shall be permitted
to submit application for fees and costs incurred in moving to
dismiss the instant complaint, pursuant to N.J.S.A. 2A:15-59.1."
After entry of the March 31, 1995 order, the judge who had heard
all the previous matters resigned from the bench.
A second judge handled the remaining claims against defendants
Pellino. Plaintiff subsequently filed letters expressing her
desire to dismiss all claims as to Pellino. On November 13, 1995,
the second judge issued a letter stating that she was satisfied
that plaintiff did not want to proceed against Pellino.
Accordingly, by order dated December 7, 1995, the court dismissed
the plaintiff's remaining claims with prejudice. In the order, the
court also stated that "all other claims of plaintiffs against all
other defendants have been previously dismissed, this order shall
be, and is, a final judgment of the Superior Court, Trial Division,
as per R. 2:2-3."
On November 22, 1995, the Mataras defendants filed a motion
for attorney fees and expenses of $31,496.79, pursuant to N.J.S.A.
2A:15-59.1. By order entered December 19, 1995, the judge without
oral argument or stating the court's reasoning, on the record,
denied the Mataras defendants' motion. The Mataras defendants have
cross-appealed. The Accident
On June 7, 1988, two wheels from James Marshall's tractor-trailer came loose on the New Jersey Turnpike. A driver travelling
southbound crashed into the wheel lifting the wheel high in the air
into the northbound lanes where it came down directly on top of
Anthony Mataras' car. On this same day, plaintiff consulted S.
George Greenspan and he recommended to her an attorney, John
Agnello at Carella Byrne, to handle her wrongful death claim.See footnote 2
Greenspan later met with plaintiff and Agnello at Carella Byrne,
and Agnello agreed to take the case.
On or about June 19, 1988, James Mataras retained Pellino to
represent and advise him individually and as executor of the estate
and to be attorneys for the estate. The Administration of the Estate
Earlier, in February 1984, Anthony Mataras had executed a
will which provided for his three sons from his first marriage,
James, Louis, and Dean Mataras, and named James as Executor.
Anthony Mataras had a fourth son, Eric Mataras, with plaintiff in
or about 1977 while still married to his first wife. Anthony
Mataras' will, however did not mention his son, Eric Mataras, nor
plaintiff, whom he married on June 30, 1984, after his first wife's
death. Anthony Mataras did not change his will to include
plaintiff. The only asset specifically mentioned in the will was
decedent's one-half interest in the J.T.S. Restaurant Company which
he bequeathed to James Mataras. As to Anthony Mataras' other
assets, paragraph five of the will provided specifically: "It is my
intention that all other property that I may own and possess at the
time of my death shall pass according to the New Jersey Laws of
Intestacy." Additionally, on or about June 29, 1984, Anthony
Mataras had executed a Stockholder's Agreement with Sam
Athanasenas, his business partner, providing that his interest in
J.T.S. would pass to his son, James Mataras.
After the accident, letters testamentary were issued to James
as Executor of the Estate of Anthony Mataras on or about July 19,
1988. James Mataras then proceeded to administer the estate of the
decedent consistent with the will; he distributed decedent's fifty
shares in J.T.S. to the specified beneficiary, himself, and was
prepared to distribute the remainder of the decedent's estate
pursuant to the terms of the will, which stated that the remainder
of the decedent's estate was to be distributed in accordance with
the New Jersey Laws of Intestacy. Thus, plaintiff would receive
50" of the remainder of James Mataras' assets, and each of the sons
of the decedent, James, Louis, Dean and Eric, would receive an
equal one-fourth share of the remaining 50" of the assets owned by
the decedent (other than the stock in J.T.S.).See footnote 3
The funeral expenses and various debts of Anthony Mataras,
however, consumed the assets that would have passed to James,
Louis, Dean and Eric Mataras, as well as to plaintiff. Thus,
plaintiff did not receive any of the assets from decedent's estate.
Outside the will, however, plaintiff was the beneficiary of life
insurance benefits in excess of $60,000. She also received the
marital home because it was owned as tenants by the entirety. Eric
Mataras was the beneficiary of life insurance benefits in the
amount of approximately $46,000.
Throughout the administration of the estate, plaintiff took no
steps to challenge the will or to take her elective share pursuant
to N.J.S.A. 3B:8-1. In a letter dated May 3, 1993, plaintiff
confirmed decedent's testamentary intent:
My husband [decedent, Anthony Mataras] made it clear to
all of us, that Jimmy [(James Mataras)] was to get my
husband's share of the diner/restaurant since it was
Jimmy, in effect, who gave up his career to help his
father out at the time of great financial and business
hardship.... Eric and I were to have the house we lived
in at the time....The life insurance my husband
purchased for his entire family was fairly well-split
between the five of us.... My husband [decedent, Anthony
Mataras] had told me that Jimmy understood that the
burial arrangements were his responsibility and are
presumed that he was carrying out specific instructions
for my husband. At no time was I consulted.
Nevertheless, I did agree to split funeral costs with my
The Wrongful Death Action
The law firm of Cecchi, Brody and Agnello (now defendant
Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein)
represented the Estate of Anthony Mataras in a wrongful death
action arising from Anthony's death. Suit was filed on December
12, 1988. While the suit was pending, plaintiff retained Robert
Green in 1991 to act as her independent counsel in the underlying
action. Mr. Green is the attorney who filed the instant complaint
on plaintiff's behalf.
After negotiations, on or about September 15, 1992, the case
was settled for $200,000. The net proceeds of $130,000 were
distributed pursuant to court order as follows: $75,000 to
plaintiff Dorothy Mataras, $25,000 to Eric Mataras, and $10,000
each to Louis, Dean, and James Mataras. Plaintiff agreed to all
terms of the settlement and, when the matter was settled, she shook
Ms. Heim's (attorney for Carella Byrne) hand.
On appeal, plaintiff Dorothy Mataras alleges, interalia: (i)
tortious interference with a civil action; (ii) violation of the
separation of powers doctrine, and the judiciary has no right to
decline to exercise jurisdiction; (iii) she has been oppressively
harmed by abuses of judicial discretion denying her procedural
rights; (iv) coerced or fraudulent settlements cannot defeat
statutory rights; (v) there was a wanton and willful disregard with
reckless indifference in an oppressive breach of fiduciary duties;
and (vi) Green's third party status and his disqualification based
upon falsified certification was in the nature of malicious
prosecution denying plaintiff free access to the courts.
Except for her response to the Mataras defendants' cross-appeal for frivolous litigation fees which was denied, plaintiff's
claims are clearly without merit. R. 2:11-3(e)(1)(E).
Notwithstanding plaintiff's latest letter dated March 4, 1997,
citing Olds v. Donnelly,
291 N.J. Super. 222 (App. Div.), certif.granted,
146 N.J. 565 (1996), the trial court properly granted
summary judgment dismissing plaintiff's third amended complaint
because plaintiff's competent evidence submitted did not raise a
genuine issue as to a material fact.
Plaintiff took no steps to challenge her late husband's will
or to take her elective share and she received more than she was
entitled to as a matter of law. She also agreed to all the terms
of the settlement of the wrongful death action. The court properly
disqualified Robert Green for a patent conflict of interest. The
fourth-party complaint against Marianne Espinosa Murphy was
properly dismissed based upon absolute privilege.
The only real issue in this appeal is the Mataras defendants'
cross-appeal of the order denying attorney's fees under N.J.S.A.
2A:15-59.1. Because there is no record to show why the judge
denied the attorney's fees, it is necessary for us to remand the
case to obtain the judge's reasons for denying fees. However,
since the Mataras defendants have asserted certain arguments which
they say mandate an award of fees, we will briefly address them.
The Mataras defendants contend that the first judge's finding
that plaintiff conducted frivolous litigation is the law of the
case by which the second judge is bound. This is simply not so
because the first judge had no right to make that determination
until the proceeding, or at least that part against the Mataras
defendants, was completed. In addition, pursuant to N.J.S.A.
2A:15-59.1(c), a formal application had to be made, after which
plaintiff would be entitled to a hearing. SeeMcKeown-Brand v.
Trump Castle Hotel & Casino,
132 N.J. 546, 559 (1993)(citing Fagas
251 N.J.Super. 169, 221 (Law Div. 1991)).
Second, and most significant, is the fact that plaintiff's
Third Amended Complaint, upon which her causes of action were
based, was prepared by her attorney, who was later disqualified
upon defendants' motion. Therefore, plaintiff could not be
assessed fees if she acted in good faith on advice of counsel.
McKeown-Brand, 132 N.J. at 558. This factor is particularly
appropriate herein where plaintiff's attorney was disqualified.
This issue could only be determined after a plenary hearing. If
the trial court should find that after plaintiff began appearing
prose, she maintained the action in bad faith despite her former
attorney's advice, or fabricated facts, the court might be able to
find that plaintiff continued her case against the Mataras
defendants "in bad faith, solely for the purpose of harassment,
delay or malicious injury."
Lastly, in any event, it would not be proper to assess any
fees against Eric Mataras, who is now of age, because there is no
evidence in the record that he in any way wanted this litigation
instituted or continued it. In fact he informed us that he does
not want to participate in this appeal.
On the direct appeal, we affirm the judgment dismissing the
complaint and third-party complaint. On the cross-appeal, we
reverse and remand to the trial court for it to set forth the
reasons why frivolous litigation fees were denied. We do not
Footnote: 1Although Eric Mataras, the son of plaintiff and Anthony
Mataras, is listed in the caption by Order of June 10, 1996, we
remanded this case to determine the status of Eric Mataras in this
case in order to clarify his interest in this appeal . The trial
court by letter of July 15, 1996, advised us that Eric Mataras
became an adult in or before 1995, he did not wish to participate
in this lawsuit, and he would not proceed with this suit on his own
behalf. Footnote: 2Plaintiff claims that she retained Greenspan to handle all
matters arising from Anthony Mataras' death but provides no
evidence supporting this proposition.Footnote: 3SeeN.J.S.A. 3B:5-3d (stating that intestate share of
surviving spouse is one-half of the intestate estate "[i]f there
are surviving issue one or more of whom are not issue of the
surviving spouse . . ."); seealsoN.J.S.A. 3B:5-4a ("The part of
the intestate estate not passing to the surviving spouse under
N.J.S.A. 3B:5-3 ... passes as follows: a. To the issue of the
decedent; if they are all of the same degree of kinship to the
decedent they take equally ...").